Szauter v Colvin [2011] NSWLEC 1321

Szauter v Colvin [2011] NSWLEC 1321

Section 10(2) was not satisfied because there was no evidence linking the garage damage to the trees, no evidence that the trees were likely to damage the garage in the near future, and no evidence that damage to the sewer was imminent. The retaining wall aspect was not pressed because there was no retaining wall on the applicant's land. The Court therefore had no jurisdiction to order interference with the trees.

Jurisdiction
Australia
Judgment Date
08 November 2011
Procedural Posture
Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application dismissed
Legal Topics
['future Damage to Property From Trees' 'removal of Trees' 'tree Roots and Garage, Sewer Pipes and Retaining Wall' 'near Future Damage Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours' 'property Damage'] ['future Damage to Property From Trees' 'removal of Trees' 'tree Roots and Garage, Sewer Pipes and Retaining Wall' 'near Future Damage Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the trees have caused, are causing, or are likely in the near future to cause damage to the applicant's garage." "Whether the trees are likely in the near future to cause damage or blockage to the applicant's sewer." 'Whether the Court had jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 to order interference with the trees.']

Ratio Decidendi

Section 10(2) was not satisfied because there was no evidence linking the garage damage to the trees, no evidence that the trees were likely to damage the garage in the near future, and no evidence that damage to the sewer was imminent. The retaining wall aspect was not pressed because there was no retaining wall on the applicant's land. The Court therefore had no jurisdiction to order interference with the trees.

Court Disposition

Application dismissed

Orders

  • ['The application to remove the trees is dismissed.']